## Facts

- Herbert Rosenthal Jewelry Corp. created and registered a copyright in a jeweled pin shaped like a bee made of gold and jewels.
- Edward and Lucy Kalpakian manufactured and sold jeweled bee pins that Rosenthal alleged were infringing copies.
- The parties previously entered a consent decree stating Rosenthal’s copyright was valid and enjoining defendants from infringing and from manufacturing or selling copies of Rosenthal’s jeweled bee pin.
- Rosenthal later moved to hold defendants in contempt, asserting defendants resumed selling infringing jeweled bee pins.
- After an evidentiary hearing, the district court found defendants designed their pins independently after studying bees in nature and published works, rather than copying Rosenthal’s pin.
- The district court found the pins were not substantially similar except that both resembled bees, and it denied the contempt motion.
- Rosenthal appealed the denial of contempt.

## Issues

1. Whether defendants’ jeweled bee pins were substantially similar to protectable elements of Rosenthal’s pin such that they infringed copyright and violated the consent decree.
2. Whether, given the limited ways to depict a lifelike jeweled bee, protecting Rosenthal’s design would improperly grant a monopoly over the idea of a jeweled bee pin.

## Decision

- The Ninth Circuit affirmed the district court’s denial of Rosenthal’s contempt motion.
- The court held defendants did not infringe Rosenthal’s copyright and therefore did not violate the consent decree.
- The court upheld the findings that defendants did not copy Rosenthal’s work and that any similarity largely derived from the common concept of a realistic bee.

## Legal Principles

- Copyright protects expression, not the underlying idea; a plaintiff cannot use copyright to control a general concept (here, a jeweled bee pin).
- Where the idea and the practical means of expressing it are effectively inseparable because few alternatives exist, protection is narrow and cannot extend to the idea itself.
- In evaluating substantial similarity for lifelike depictions of natural objects, similarities dictated by nature and medium constraints are not protectable.
- Access plus resemblance does not establish copying when the shared features are unprotectable and credible evidence supports independent creation.
- A consent decree barring infringement is violated only if the challenged conduct constitutes infringement.

## Conclusion

The court concluded that defendants’ bee pins did not copy protectable expression and were similar to Rosenthal’s pin only in the unprotectable idea of a realistic jeweled bee; extending protection as Rosenthal sought would foreclose competing jeweled bee designs better left, if at all, to patent law, so contempt was properly denied.


Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971)